November 16, 2005

Requiem

by hilzoy

As Katherine noted last night, the Senate approved the compromise Graham/Levin/Kyl amendment that she wrote about the night before. Like Katherine, I don't know what to make of it, beyond the following obvious points. First, it's a lot better than the original Graham amendment. I think that this improvement had a lot to do with the pressure brought to bear by people who were outraged. Anyone who called or wrote contributed to this, and can feel proud, as can those who worked behind the scenes in other ways.

This is how democracies are maintained: not just by having (for instance) a bill of rights and a democratic constitution, but by having free citizens who work to protect those rights even when they are not personally affected. By working to block this amendment, all of you have helped to make it true that we are not a country where fundamental rights can be stripped away without anyone bothering to raise his or her voice. Moreover, I would imagine that each of us has learned something about what habeas corpus is and why it matters. (I know I have.) This makes it that much less likely that the next time around, people will be able to succeed in curtailing it. And this matters immensely: democracies are maintained by the free choices of free citizens to protect the freedoms they enjoy, and everyone who fought this has acted as free citizens should.

On the other hand, this bill is worse than the status quo ante, since it strips the detainees of habeas corpus. Habeas petitions were not "clogging" the court system: if our courts are so fragile that fewer than two hundred petitions can bring them to their knees, then we really, really need to appoint more judges. And habeas matters. It matters a lot. As a sort of requiem for this whole thing, I'm going to write what would have been my next post in the series had I not been incredibly busy for the last two days, as the last of my habeas stories.

In the comments to an earlier post, someone thought that I was using O.K. as a "poster boy" for habeas corpus. I wasn't: I was tracking down the stories Graham used, and in O.K.'s case I tried to make it clear that he was accused of doing serious things, and that his goodness or badness seemed to me to have nothing to do with whether or not his allegations should be investigated. The case I am about to describe, however, is a poster child for habeas corpus. The detainees involved have been found innocent by the government's own tribunals. They are asking the government to explain why they are still being detained. This is exactly what habeas corpus is all about. It is also a case that cannot be brought under the new compromise bill; and that is a disgrace.

This case concerns two Uighurs, members of a Muslim minority from China. Their attorney described one of them in this op-ed in last Sunday's Washington Post:

"Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.

The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later. And these facts would still be a secret but for one thing: habeas corpus.

Only habeas corpus got Adel a chance to tell a federal judge what had happened. Only habeas corpus revealed that it wasn't just Adel who was innocent -- it was Abu Bakker and Ahmet and Ayoub and Zakerjain and Sadiq -- all Guantanamo "terrorists" whom the military has found innocent. (...)

Adel lives in a small fenced compound 8,000 miles from his home and family. The Defense Department says it is trying to arrange for a country to take him -- some country other than his native communist China, where Muslims like Adel are routinely tortured. It has been saying this for more than two years. But the rest of the world is not rushing to aid the Bush administration, and meanwhile Adel is about to pass his fourth anniversary in a U.S. prison.

He has no visitors save his lawyers. He has no news in his native language, Uighur. He cannot speak to his wife, his children, his parents. When I first met him on July 15, in a grim place they call Camp Echo, his leg was chained to the floor. I brought photographs of his children to another visit, but I had to take them away again. They were "contraband," and he was forbidden to receive them from me. (...)

The secretary of defense chained Adel, took him to Cuba, imprisoned him and sends teams of lawyers to fight any effort to get his case heard. Now the Senate has voted to lock down his only hope, the courts, and to throw away the key forever. Before they do this, I have a last request on his behalf. I make it to the 49 senators who voted for this amendment.

I'm back in Cuba today, maybe for the last time. Come down and join me. Sen. Graham, Sen. Kyl -- come meet the sleepy-eyed young man with the shy smile and the gentle manner. Afterward, as you look up at the bright stars over Cuba, remembering what you've seen in Camp Echo, see whether the word "terrorist" comes quite so readily to your lips. See whether the urge to abolish judicial review rests easy on your mind, or whether your heart begins to ache, as mine does, for the country I thought I knew."

***

The court document I'm going to talk about today is not a motion, but the transcript of a hearing. It allows you to read both the allegations of the attorneys for the Uighurs and the government's responses, as well as the reactions of the judge. At the outset, the judge sets the scene, first noting his jurisdiction over the case, and then saying:

"I received, I think last week, a rather startling motion from the petitioners to the effect that when their counsel finally had a chance to talk to them in July in Guantanamo, middle of July, they found out that the petitioners had been found by the Combatant Status Review Tribunal to be noncombatants. And that this happened sometime in -- I don't know, a long time ago, and that nobody bothered to notify either petitioners' counsel or me.

And not only that, but when petitioners' counsel asked questions of the government, they were ignored and the questions were not answered.

Now the petitioners have asked that since these men have been found not to be combatants, that they be released into the non-prison side of the Guantanamo compound until or unless they are relocated by the government.

The government resists that notion, and that's why we're here, to have a hearing and find out what on earth is going on here."

Sabin Willett, the attorney for the Uighurs, then speaks. He says that the point of a habeas petition is to ask the government to show cause why someone is imprisoned, and that in this case they have provided no answer to that question. He also notes that it turns out that the government's Tribunal (the CSRT) had declared the Uighurs to be noncombatants on March 26, 2005, some three months earlier. Moreover, what had happened on March 26 was the final review of a three-step process, which makes it likely that the actual tribunal hearing at which the Uighurs had been found innocent had happened well before that. (This article puts the decision in "late 2003", almost two years before this hearing.)

After March 26, the government resisted requests that they disclose the results of the CSRT. Three days after the CSRT process had concluded, the government wrote that the CSRT result requested "typically has consisted of the record of proceedings that confirmed petitioner's status as an enemy combatant." The government did not see fit to mention the fact, which was known to them but not to the judge or to opposing counsel, that this was one of those atypical cases in which the petitioner had been found not to be an enemy combatant.

Willett also says this:

"Here's what I saw on July 14th. A slight, gentle man with a shy smile chained to the floor, a man sitting in a box that had no windows. As far as the guards were concerned, he has no name. They refer to him by his number. When he wanted to go to the bathroom, a guard had to come in and put on green rubber gloves --

THE COURT: You're not talking about your client?

MR. WILLETT: I'm talking about my client.

THE COURT: He was chained to a floor?

MR. WILLETT: He had a leg shackle that was chained to a bolt in the floor, Your Honor, in Camp Echo. Both of my clients.

I thought I knew something about what this imprisonment meant, but I was wrong. I really found out Friday of last week. You see, there had been a newspaper article that had been written about this story, and it had been picked up by the Uighur diaspora and made its way to Europe.

And late Thursday came an extraordinary telephone call, and on Friday, through an interpreter, I spoke by telephone to Kabsur Abdul Hakim, who is a refugee living in Sweden, and she is Adel's sister. And while Mary Turkel, the interpreter who was in the room, and I listened to her weep, she told us that the thought her brother was dead.

You see, she was right. These people are dead to the outside world. They're dead to their children, they're dead to their wives, even their names are a secret. And but for the fortuity that my clients happen to have outside lawyers, the fact of their acquittal, or whatever you call this, would be a secret."

Remember: these are people the government has cleared.

Mr. Henry, for the government, responds that the government's legal basis for holding the Uighurs is its right to hold people suspected of being enemy combatants, and then to "wind up that detention in an orderly fashion" (p. 14.) They have been trying to find a country to release the Uighurs to, but have not been successful. They did not provide information to the Uighurs' counsel because they have too many cases. Then follows this interchange about the relevant law:

"THE COURT: (...) Are you saying that you've got a right to file a writ of habeas corpus, but that's all?

MR. HENRY: Well, your honor, essentially yes. The writ of habeas corpus brings the matter before the Court, but the issue of whether --

THE COURT: But the Court can't do anything about it?"

Mr. Henry seems to be obfuscating his way around a 'no' when the judge asks him to say why, exactly, the government is entitled to hold the prisoners. Mr. Henry says: well, after we clear prisoners, we have to "wind up" their detention. The government is trying to do this. Its efforts, he says, are diligent, but he cannot explain what they are, either to the Court or to opposing counsel.

The judge then asks why the government did not tell anyone that these detainees had been cleared by the CSRT. Mr. Henry says that they never do that unless they are required to file a return (i.e., to inform the Court what the outcome of the CSRT process was.) That statement prompts this (note: NLEC means: no longer enemy combatant):

"THE COURT: I'll tell you one thing, Counsel. You've talked me early on into not requiring returns to be filed in the cases. But I'm going to go back to all my habeas cases this afternoon and change those orders. Because if you're telling me that it's only a return that will allow you to tell opposing counsel that their clients are no longer enemy combatants, that's a little hard for me to understand.

MR. HENRY: But, Your Honor, until we're ready to release someone, I mean, we continue to detain them. (...) And I would point also out that as a practical matter, we have new cases filed virtually every day. How many of these involve NLECs? I can't tell you.

THE COURT: Oh, I think you've got a database. How many people are down there?

MR. HENRY: I don't know, Your Honor. It involves our inquiry to the client and that sort of thing. But, you know, all I'm intending to point out is that it is a logistical undertaking that is significant, and ..."

The judge then turns to various possibly similar cases -- German POWs after World War II, Haitians captured on the High Seas -- and starts asking Mr. Henry whether the Haitians are chained to floors. It would be comic if it weren't tragic:

THE COURT: There's a yes-or-no answer to that. Are they chained to floors in the immigrant detention center?

MR. HENRY: The detainees are not chained to floors in their normal detention center either, Your Honor.

THE COURT: But in the immigration center. If lawyers go down to talk to people in that immigration center, are they chained to floors?

MR. HENRY: It's my understanding that lawyers are not permitted to go down to the Migrant Operations Center.

THE COURT: So if lawyers show up, they have to chain people to floors. Is that the rule?

MR. HENRY: I don't believe so, Your Honor."

Henry then goes on to explain why the detainees at Guantanamo are chained to floors: it's for the protection of the lawyers, since on occasion other detainees have "lunged at" the lawyers.

"MR. HENRY: So the chaining to the floor is for everyone's protection; it's a standard operating procedure. They don't make exceptions based on, well, I think this guy is okay. I mean, you can see the potential danger of that kind of situation, given that they've got 500 people down there and rotating guard staffs and that sort of thing.

So the chaining to the floor, while I certainly understand is an unpleasant image, it happens with respect to all counsel visits or visits from any individuals that are not the detainees themselves. And it's done for the safety of all concerned.

But the detainees are not kept chained in their normal detention facility; in fact, it's quite the opposite."

Well, that's a relief.

They then discuss possible alternative places where the Uighurs might be held, and why the government favors holding them at Guantanamo. Answer: the detainees "might be unhappy" about the country they are ultimately released to, and might "take action against themselves or others to try to avoid going there." Also, according to the government, just because they are not enemy combatants doesn't mean they are nice guys. Then they move on to the government's attempts to find a country to release them to.

"THE COURT: Counsel, you said that -- you used the word 'soon' to describe when you thought that this might be resolved. Define 'soon'.

MR. HENRY: I don't know when that is. I apologize if I misspoke. I mean, I think I said 'soon' in kind of the hopeful sense of the word."

Ah: the hopeful sense. The sense in which it is true that I will "soon" win the lottery, publish my twenty-sixth book, finally become an organized person who answers her email on time, and realize my Buddha-nature.

The Court then asks to hear from Mr. Willett, who says that in his efforts to find a country that would accept the Uighurs, he has "yet to trip over the government's trail." He adds:

"So what they're doing, who knows? All we can really say is they kept it secret that they made this determination and who knows whether they've done anything."

They then discuss various other possibilities, and a few related details, and then the hearing is over.

***

What do we learn from this? The government thinks it is perfectly acceptable not to inform counsel or the court when it determines that detainees are not enemy combatants, even though the allegation that they are enemy combatants is central to the justification for holding them. They seem to think, in addition, that it is acceptable to mislead counsel and the Court about the status of those detainees. They also think it is fine to keep those detainees at Guantanamo, to chain detainees who are not enemy combatants to the floor, and to deny them the right to communicate with anyone in the outside world, including relatives who think they are dead, and to confiscate things like photographs of their families as contraband. They claim that they cannot discuss the efforts they are making to place those detainees, and that they cannot release those detainees until those efforts, whatever they are, are completed, which will be "'soon' in kind of the hopeful sense of the word."

In general, at every point in this process the government considers the inconveniences to itself of taking any step to ameliorate the condition of these detainees. At no point does it show any awareness at all either of the costs to the detainees of remaining in detention indefinitely, or to our system of laws of keeping them there even after they have been determined to be innocent. In some ways this is understandable. But that's why we have courts: so that the government cannot just decide in its own favor time and again, without being forced to justify its decisions to anyone.

Because these detainees had the right to file for habeas corpus, they were able to make their case known. Had they not had those rights, they might never have discovered that they had been cleared, nor would their relatives, who believed they were dead, have learned that they were in Guantanamo. Had they not had those rights, the judge in this case would not have learned that his orders had been taken by the government to mean that they did not have to tell anyone when detainees are cleared, and thus he would not have known that he needed to revise those orders. After this hearing, these detainees' living conditions were improved; this might not had happened had the government not been embarrassed before the Court. And had these detainees not had the right to file for habeas corpus, none of us would know that they existed, let alone be able to read details of their incarceration, and what our government had to say in its own defense.

But habeas rights do not solve everything. To the best of my knowledge, the Uighur detainees are still at Guantanamo. The detainee Willett described as "the sleepy-eyed young man with the shy smile and the gentle manner" is still in jail, cleared of all charges but unable to go free.

This is shameful. We paid Pakistani bounty hunters for captives. I'm sure there are reasons for doing this, but it obviously creates incentives for bounty hunters to claim that people who have done nothing wrong are terrorists; and if we, as a nation, are prepared to create those perverse incentives, then we, as a nation, should be prepared to take action when we realize that we have wrongly imprisoned someone as a result. (In this case, I think that we should find some non-precedent-setting way of offering them asylum.) We took these men captive, and held them for years after we realized that they had done nothing wrong. We have stolen years of their lives, and they are still in prison to this day.

Now we have stripped them of the right to take their case to the courts and make it heard. We have said, in essence, that we will simply trust the government to do the right thing. We should not trust any government in this way, and certainly not this one, which has already shown a truly shocking disdain both for the legal rights of anyone who falls into its hands, innocent or guilty, and for the separation of powers; and an equally shocking unwillingness to even begin to police itself.

This is a profound mistake. As I said earlier, though, the revised Graham amendment does a lot less damage than the original would have done. And those of you who took action against it are all partly responsible for that fact. We, as a people, will retain our liberty only if we are willing to defend it, and to defend it not just when we ourselves are deprived of it, but when others are, especially when those others are not able to speak for themselves.

All of you who took action helped to ensure that we remain a people worthy of our freedoms, and you made it that much less likely that any such action will succeed the next time it is tried. Even though we failed to block the Graham amendment, the fact that it did not just slip past us without our noticing or caring is very important; and I think that everyone who took action should be proud of that. Thank you.

Comments

Dear hilzoy and Katherine,

As one of the six-billion-plus whose rights are in question, I greatly appreciate your efforts. To the many Americans who are either apathetic or downright bloody-minded about this, all I can say is, if you want the support of other nations please remember that lots of people really dislike the idea of being locked up for a long time without any explanation. This kind of thing affects the way we view America. I must say the attorney’s phrase “the country I thought I knew” struck a chord with me.

Knowing the frustration of putting effort, sometimes considerable effort, into a long post, and getting few responses, I'd like to say that I've read every word of this post, Hilzoy, and I'm simply speechless in reaction.

Not surprised, at all. But still speechless. For the moment, at least, on these specficis. (It's a mix of horror and rage and anger and sadness, terrible sadness, and the need to again push away the seductive tentacles of despair that attempt to intwine themselves around me, so I go back to the horror and rage and anger and terrible sadness, and then I either keep thinking about it, or try to push it to the back of my head until I can articulate again.)

I also want to remind people that this battle *isn't* over. Hopefully the Supreme court can override a law like this, since habeas corpus is a right stated in the Constitution; it isn't just a law.

On the other hand, this is a significant defeat, and we need to (and I certainly have) call our Senators, and call them again, and again, and remind them that this is *important*. These rights are all that stand between the America I too used to know, and a police state. Secrecy is always poison to democracy, and this administration has perverted our military branches and intelligence agencies by OK'ing torture, indefinite imprisonment without charges, and holding people incommunicado.

It will be hard work, but we need to keep the pressure on these swine in Washington.

Two Uyghur/Uighur detainees featured in sections of a document released to the public thanks to the FoIA action by the ACLU. For those interested in finding out more about their situation, I've transcribed the relevant parts of the pdfs here and another Uyghur's story here.

I doubt the US changed into a fear mode in 2005; that was the prewar mood. Tho there are workarounds suggested by some of the respondents in Marty Lederman's thread at Scotusblog I find improbable that 80 senators would expect the courts to wiggle around Bingaman Levin Graham; rather, to me hilzoy's depiction remains imponderable. Given the choice of two bad amendments Senators actually voted.

John, I can't tell which vote you're talking about. On the initial Graham amendment vote, only five Democrats voted "nay," and more than one Republican voted "yea" (Smith, for instance); on the Bingaman amendment, everyone you named voted "yea" (along with a bunch of others), but that was a vote to restore habeas; and on the compromise amendment many more Democrats than the ones you list voted "Yea," but as Katherine pointed out "Nay" votes were protest votes, and if the amendment had been defeated it would have left the even worse original amendment in place. So I don't see any basis for saying that those eight Democrats voted for ending most habeas.

What is habeas supposed to get these detainees? An order for release? Where do they go if no third party country is willing to take them? The most convenient thing for the administration would be to put them on a plane to China, which they haven't done out of concerns for their mistreatment, a judgement with which the detainees no vigorously agree. So its not the case that the administration has done what's easiest for themselves at every point. The post talks about a "non precedent setting way" of grantining them asylum here, and wisely so, since a binding precedent that anyone who comes into our custody that turns out to be a citizen of a tyrannical regime has to be either tried or granted asylum in the US would be a security and political nightmare.
But by definition I don't see how habeas proceedings produce any "non-precedent setting" solutions. Maybe habeas helps with the conditions of their confinement, but I don't see how it reaches the detainment itself of these men.

Uh, in Guantanamo Bay they're chained to the floor, they're not permitted to keep photos of their family, and their family were led to think that they are dead.

I think that coming from an administration which has continued to treat them as if they were dangerous criminals for months after the administration knew they were not, "concerns for their mistreatment" rings false.

What is habeas supposed to get these detainees? An order for release?

If they're being illegally detained, yes.

Where do they go if no third party country is willing to take them?

Since the US caused the problem by buying them off Pakistani bounty hunters in the first place, the US owes them asylum. Simple.

since a binding precedent that anyone who comes into our custody that turns out to be a citizen of a tyrannical regime has to be either tried or granted asylum in the US would be a security and political nightmare.

Perhaps the resulting inconvenience to the US would teach successor administrations (since we already know the Bush administration not only does not learn from its mistakes, it won't admit it's made any) that randomly taking into custody and imprisoning without trial anyone that any thug says is a terrorist is in itself a security and political nightmare.

"Multi-lingual allusive non-sequitars are the commenting wave of the future."

I was a major, sometimes overwhelming, user of unilingual allusive non-sequiturs once upon a time in my writing history. I started learning around age 17 or so how to get it more under control. It's overly easy to go the other way. (I'm not shy about the not infrequent use of obscure references on my own blog; say, have I mentioned I have a blog?)

(Since it likely isn't clear, since I don't believe I've ever said so, I will note that I'm quite fond of, and sometimes admiring of, the thullenesque thulleninities of thullenisms we are often treated to here, by the way.)

The Statistical Abstract of the United States shows more than a hundred thousand refugees received each year in the early 2000s. Is anyone asserting that the system absolutely cannot possibly or conceivably ever handle any more?

It would seem to me that we owe people mistakenly seized as enemies of the nation at least as much as we owe people in the witness protection program.

I don't know that someone like RD or Petelli would actually be as glad if everyone mistakenly captured were to just die quietly and never be seen again at all. I don't have a reason to suspect that they would actually find relief or even pleasure in the death of people whose only fault was to get captured without cause. But I do know that their demonstated willingness to regard it all as such a burden and to treat any possible solution anchored in the most basic fair play and justice as a huge load that could cripple our society does, directly, contribute to an environment in which those who would will and like the deaths can get away with it. If we're not willing to treat justice for each person as a thing to take seriously, each day, then we get...well, we get this situation here.

And of course as Teresa Nielsen Hayden rightly said, "Just because you're on their side, doesn't mean they're on yours." They're willing to discard allies at a moment's notice and subject them to degrading assault. They can do it to you, too, the moment you become inconvenient. And support for them gives them the tools to do more to you, if and when.

What CaseyL said at Nov 16 4:36 p.m., especially about making it hard for the rest of us to give up.

It's tempting enough to do so: The Virginia senator who pretends to care about torture, Warner, voted wrong on all the habeas amendments, despite many calls from constituents and letters from senior military types (many of whom are also constituents). The other senator barely pretends to oppose torture, and probably plans to run for re-election on his "tough on terrorists" votes.

Right, I didn't say I was happen for them to stay there forever. I was expressing doubts that *habeas* petitions were an adequate tool for them. Habeas is first and foremost about getting you out of jail when you shouldn't be there. That's not contested here. The problem is where they go afterwards. If these guys wanted to return to the country where they are citizens, China, they could do it tomorrow. The US would be within its rights to fly them out regardless of the consequences. The fact that it hasn't seems to weigh pretty strongly against the idea that it has no concern at all for these detainees' human rights.

rd: The fact that it hasn't seems to weigh pretty strongly against the idea that it has no concern at all for these detainees' human rights.

The fact that the US is still holding these innocent men in a top-security jail where they are being treated as if they are dangerous criminals, overweighs any pretense that the US has any real concern for their human rights.

The problem is where they go afterwards.

I'd say the US should ask them where they want to go, and then give them all the assistance they need in going there and supporting them once they're there. The US owes these guys big, rd: they were unjustly arrested, imprisoned, and treated without concern for their human rights or dignity, even after the US authorities had established to their own satisfaction that they were innocent.

Sorry for the inadvertent humor evoked from some commenters in what is a serious matter. My take was Bingaman was still a setback, and Graham a disaster; I was dismayed at the centrist non-lawyer Senators who readily accepted the lesser of two distasteful amendments. My position would be favoring a strong habeas, a view aligned with neither Graham nor Bingman. However, congress is for the compromisers.
As a standard visitor to the site might observe, I was fairly new to this website. I agree with other observers who state hilzoy's prose is limpid. I admit a sensation of stun in this particular 'Requiem' post: the hour being well past midnight, the hilzoy article's detail very luridly graphic, and its title galvanized. Hopefully I may learn from the website if I revisit it. I append this note in deference to all the excellence at Obsidian Wings.

Mr Henry, the government hack posing as a lawyer:
"But the detainees are not kept chained in their normal detention facility; in fact, it's quite the opposite."
Quite. When given the extaordinary privilege of meeting their lawyers, the prisoners are chained to the floor. Are we to understand that the rest of the time the floors are chained to the prisoners?